Land and Environment Court New South Wales Medium Neutral Citation: Varvaressos v Canterbury City Council [2011] NSWLEC 1137 Hearing dates: 4 May 2011 Decision date: 26 May 2011 Jurisdiction: Class 1 Before: Morris C Decision: (1)The appeal is dismissed; (2)The section 96 application to modify development consent 1080/2003 is refused; (3)The exhibits, other than exhibits A, C and 1 are returned. Catchwords: Modification; Dwelling House; Bulk and Scale; Streetscape. Legislation Cited: Environmental Planning and Assessment Act 1979; Canterbury Planning Scheme Ordinance; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. Texts Cited: Canterbury Single Unit Dwelling House Code; Canterbury Development Control Plan No. 49 -Single Dwelling Code; Canterbury Energy Smart Homes Policy. Category: Principal judgment Parties: M & A Varvaressos (Applicants) Canterbury City Council (Respondent) Representation: Mr K Papanicolaou (Applicant) KP Lawyers Mr A Seton (Respondent) Marsdens Law Group File Number(s): 10143 of 2011 Judgment 1This is an appeal against the refusal by Canterbury City Council (the council) of an application which sought modification of development consent No 1080/2003 (the consent) to allow for an increase in floor area and covered outdoor area, amendment to internal and external design and reduction of front and side setbacks of a dwelling house. 2The matters in contention whether the additions should be allowed having regard to the council's floor space ratio (FSR), height, and setback controls and whether the proposal would be an overdevelopment of the site. The site and its context 3The application relates to a property at No 33 Prince Edward Avenue, Earlwood (the site) that is located on the western side of the road, approximately 40 m north of its intersection with Permanent Avenue. The site has a splayed frontage of 16.255 m, depth of 42.67/38.4 m and site area of between 607.7 sq m and 608.8 sq m depending on which survey report is correct, as two reports are available and have been referred to by the town planning experts as discussed later in this judgment. 4Prince Edward Avenue primarily comprises single dwelling houses of one and two storey construction following the slope of the land, which rises from Permanent Avenue. The area is undergoing redevelopment with a number of new two storey dwellings having been constructed and older style dwellings undergoing refurbishment. A dual occupancy development has been constructed to the rear of the site. Background and the proposal 5The council granted consent for the construction of a two storey, single dwelling with basement garage and a swimming pool on 10 March 2004 and a construction certificate in accordance with that consent, was issued by a private certifier, on 4 November 2004. That certifier issued a Notice of Intent to Give an Order, pursuant to the provisions of s 121H of the Environmental Planning and Assessment Act 1979 , (the Act) on 24 August 2009, requiring the development to be carried out in accordance with the approved plans. From the evidence provided, that Notice was issued to the former owners of the site and not the applicants, who acquired the site on 27 January 2010. 6The applicants applied to the council for access to documents and a Building Certificate, pursuant to the provisions of s 149B of the Act, on 17 November 2009. The applicants cancelled the latter application on December 2009. 7The council issued a Notice of Intent to issue an order to the former owners of the site on 10 December 2009 as the building as constructed was not in accordance with the approved plans. Following receipt of advice of transfer of ownership, the council, on 17 March 2010, issued a subsequent Notice of Intent to the applicants requiring the development to be carried out in accordance with Development Consent 1080/2003 (the consent). 8A subsequent application for a Building Certificate was lodged with the council by the applicants on 19 April 2010 and remains outstanding pending the outcome of these proceedings. 9The application to modify the consent pursuant to the provisions of s 96(1A) of the Act was lodged by the applicants with the council on 24 June 2010. The council, after the exchange of a series of correspondence with the applicant, refused that application on 17 February 2011 for a number of reasons. Those reasons form the basis of the council's contentions. 10A partially completed dwelling house has been erected on the site to lock-up stage. The applicants purchased the site in its current form following a mortgagee sale of the property. That work, which has been completed to date, does not accord to the consent and the application seeks approval for the dwelling as built with other changes to the facade, front and rear balcony areas and internal layout. 11The following are the main changes sought by the s 96 application: * Reduction in southern side boundary setback from 1200mm to 1150mm and increase in northern setback from 1205mm to 1215mm. This increases the width of the building by 40mm. * Provision of new entry features and porch within the approved front building setback area, reducing the front setback. * Provision of two additional windows in the northern wall of and the deletion of a bathroom from the basement. * Changes to the size and location of windows on the ground and first floor levels. * Provision of columns, solid balustrade, planter boxes and brick parapet to front elevation including roofing of the upper level balconies. * Roofing of the rear, upper level balcony. * Increase in the footprint of the building at the ground and first floor levels. * Additional uncovered pergola to rear of dwelling. * Internal re-arrangement of rooms on ground and first floors. * Increase in the area of the pool with subsequent reduction in landscaped area. The planning controls 12The site is zoned Residential 2(a) under Canterbury Planning Scheme Ordinance (CPSO). Two storey dwelling houses with basement garages are permissible with consent in this zone. 13Canterbury Single Unit Dwelling House Code (the Code) applied to the site when DA1080/2003 was lodged. Canterbury Development Control Plan No. 49 -Single Dwelling Code (the DCP) superseded the Code and took effect on 15 October 2007. The parties agree that the application should be assessed against the Code. Controls in the Code provide for a maximum FSR of 0.575:1, height of 7.2m and require, for two storey dwellings, a side boundary setback of 1.2m 14Canterbury Energy Smart Homes Policy (DCP37) also applies to the site and requires consideration of energy efficiency and of relevance to this application, solar access and the impacts of the proposed development on adjoining properties. The issues 15The contentions in the case are whether the development as modified is suitable when assessed against the provisions of the Code and in particular, those provisions that relate to the maximum FSR and height, minimum side boundary setbacks and the general bulk and scale of the development. The council also contends that the applicant has failed to submit sufficient information to allow assessment of the application against the provisions of DCP37. The evidence 16The hearing was held on site and included a view of the dwelling as constructed and development in the vicinity of the site, in particular that length of Prince Edward Avenue to its termination at Polygon Crescent. 17There is no dispute between the parties that the development as modified would be substantially the same development as the development for which the consent was originally granted. I agree. 18Expert town planning evidence was heard from Mr Layman for the applicant and Mr Sutton for the council. 19The experts agree that the variation sought to side boundary setbacks is 50mm and the non-compliance in height is a maximum of 90mm and that the key issue in relation to the Code's controls is FSR. 20Clause 6.0 of the Code permits a maximum floor space ratio of 0.575:1 or 349.427 or 350.06 sq m for the site, depending on which survey is used. The applicants had access to a 2001 and a 2009 survey, the latter showing an area of 608.8 sq m. Both figures are used in the comparisons provided by the experts. 21It is agreed that the consent allowed a floor area of 354.6 sq m and a FSR of 0.584. The proposed floor area of the modified proposal is 423.24 sq m, which results in a FSR of 0.696:1 or 0.695:1. 22Mr Layman notes that the Code includes those parts of covered balconies, terraces, patios and the like that have an area over 30 sq m, that is, the Code allows a development to have 30 sq m of covered area before it is counted as floor space. He argues that when assessing the floorspace of the modified dwelling, only 30.6 sq m of the additional floor area is interior space and the remaining 37.1 sq m is external space i.e. the roofed balcony areas at the upper floor front and rear facades. 23In his opinion, the external covered areas do not significantly contribute to the bulk of the building because they are unenclosed. He considers that these spaces enhance the appearance of the proposal by articulating the front and rear facades, introducing a balance of solid and void to them and casting shadow lines on external walls enhancing their appearance. He says the structures are required to provide resistance to water penetration due to poor building construction techniques and that the areas exhibit "design skills" of a "special" nature, which mitigate the bulk of the building and are no different to the open pergolas that were approved by the consent. 24The experts agree that the modified plans provide for a 1.82 m increase in the length of the northern elevation and a 1.25 m at ground level and 1.695 m at first floor level of the southern elevation. Including the balconies the northern elevation is increased by 2.42 m. Mr Layman considers this increase, whilst perceptible, has no impact. 25Mr Sutton disagrees and considers the additional floor area is excessive, is an overdevelopment of the site and that the proposal is not in keeping with the existing or desired suburban character and creates an excessively bulky appearance to Prince Edward Avenue and to adjoining properties. 26Mr Layman argues that State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008) would allow a dwelling to be constructed as complying development to a maximum floor area of 380 sq m. As the floor area calculation under the SEPP does not include covered balcony areas, he states that a similar development to that proposed could be approved as a complying development, noting that the proposal actually exceeds the 380 sq m control by 4.89 sq m so does not satisfy that control. 27Mr Sutton adds that, in addition to the non-compliance with the floor area control, for the modified development to be complying, it would not have the large basement area and covered balcony areas, would have side boundary setbacks of 1.5 m and a maximum height of 8.5 m. He says the suite of controls under the SEPP would result in a much smaller building, limiting the bulky appearance, provide adequate separation between buildings and mitigate the amenity impacts on the adjoining property and the locality in general from that which is proposed. 28With regard to the solar access provisions, the experts conducted further analysis during the hearing and agreed that the additional building dimensions and reduced southern boundary setbacks would not adversely affect the solar access to be enjoyed by the adjacent property to the south. 29Mr Papanicolaou, for the applicant, cited examples of developments approved by the council in the vicinity of the site, which, he says, shows that the council has allowed buildings that are contrary to the council's controls in regard to FSR and boundary setbacks. One of these is the consent for the construction of a new dwelling on the adjacent lot, immediately to the south of the site. The experts examined the approved plans for that land and confirmed during the hearing that the FSR approved was 0.5:1 and that a condition of consent required the first floor level to be setback 1.2m from the side boundary, consistent with the Code. 30A dual occupancy development to the southwest of the site was also cited by Mr Papanicolaou. Mr Sutton advised that the council's controls for dual occupancy differed from that for single dwellings and included the floor area of basements in the calculation of FSR. Accordingly, the 0.72:1 FSR of that development could not be compared to the proposed development as that calculation included a large basement area. I do however note that the area of the approved basement at the site is in excess of 190sq m and therefore the inclusion of that area would add 0.3:1 to the FSR, taking it to approximately 0.995:1, well in excess of that allowed. Conversely, the experts calculated the FSR of the dual occupancy development applying the dwelling house floor area definition as being 0.515:1, less than permitted under the Code and less than that proposed by the applicant. In this regard, I agree with Mr Layman that it is not appropriate to only consider numerical compliance, it is the general bulk, scale and impact of the proposal that require consideration. 31In his submissions, Mr Papanicolaou argued that his client was being penalised because they wanted to cover the patio to address building problems and that, in his opinion, the development as modified would be consistent with the planning objectives and therefore, any demolition of the work that has been carried out in breach of the consent is no justified on a cost/benefit analysis. He says the council is pedantic in its number crunching rather than looking at the objectives of the controls and how the development sits in the locality. Conclusions and findings 32Having found the development to be substantially the same development as that to which the consent has been granted, I must now undertake an assessment of the merits of the application as modified. That merits assessment requires consideration of those matters under s 79C(1) of the Act relevant to the aspects of the development to which the application relates. 33I cannot accept the evidence of Mr Layman that the increases to the floor area of the building have no impact. I agree with Mr Sutton, that the cumulative effect of the additional floor space as constructed together with the proposed changes to the roofing of balcony areas does have an impact on the locality in terms of bulk and scale and that that impact is excessive and not consistent with the character of the area. 34I also do not accept Mr Papanicolaou's proposition that the external roofed areas should not be included in the assessment of FSR, which leads to the bulk and scale issue. The Code is clear in how floor area is calculated and it includes a generous allowance of 30 sq m of covered balcony area before any further areas are included in the calculation. The additional areas sought do contribute to the size and bulk of the dwelling and, on the view, do not accord with development in the locality. Accordingly, I find that the development as modified would be inconsistent with the council's planning intent for the area. 35I also note that DCP49 would only allow a dwelling with a maximum 330 sq m of floor space, 19.3 sq m less than the Code and a maximum FSR of 0.5:1. Whilst the council does not press the current DCP49 provisions, the document does demonstrate that the council's current approach to floor area and height (7.0m in DCP49 and 7.2m in Code) is now less than that in place at the time the original development application was lodged. 36I do not accept the argument advanced by Mr Layman that a similarly sized building could be built under the provisions of SEPP2008. Mr Sutton articulated the areas of non-compliance and accordingly, the streetscape impacts of a complying development would be considerably less than that proposed. 37I do agree, that had the only variations been those minor variations that are proposed to the building height and side boundary setback controls, that the development would have been acceptable. However, I accept Mr Sutton's view that the cumulative impact of the various non-compliances with the Code result in a building that is too large and is not visually compatible with the existing and desired suburban character due to its bulky appearance. 38In determining the appeal, I have considered the applicant's submissions that this unfortunate situation is the result of the previous owner of the site constructing the dwelling without regard to the consent and construction certificate. The assessment procedures for a s96 application are clearly set out in s96(3) and require consideration of the relevant s79C(1) matters. Accordingly, I have considered the merits of the application on the basis that no significant weight is given to any hardship or the circumstances of the applicant. 39For the above reasons the appeal is dismissed. Orders 40The Orders of the Court are: 1.The appeal is dismissed; 2. The section 96 application to modify development consent 1080/2003 is refused; 3. The exhibits, other than exhibits A, C and 1 are returned. Sue Morris Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2011